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Authority to enter convictions under alternate modes of liability

106. The Appeals Chamber observes, Judge Pocar dissenting, that it has, on multiple occasions, entered convictions on the basis of alternate modes of liability.[1] In this respect, the Appeals Chamber notes that the plain text of Article 25(2) of the Statute, namely the power vested in the Appeals Chamber to “revise” a decision taken by a trial chamber, supports the Appeals Chamber’s authority to enter convictions on the basis of alternate modes of liability. One meaning of the term revise is “to alter (an opinion, judgement, etc.) after reconsideration, or in the light of further evidence.”[2] The practice of sustaining a conviction pursuant to an alternate mode of liability is effectively one such alteration to a trial chamber’s legal reasoning. The Appeals Chamber further observes that appellate bodies of various national jurisdictions are also empowered to enter convictions on an alternate basis of liability. For example, Section 3 of the England and Wales Criminal Appeal Act 1968 allows an appellate court to substitute a conviction for an alternative offence.[3] Other national jurisdictions have instituted similar practices.[4]

107. The Appeals Chamber, Judge Pocar dissenting, is not convinced that the Appellants have presented cogent reasons requiring departure from the practice of entering convictions on the basis of alternate forms of liability in appeals in certain circumstances. The Appeals Chamber further underscores that its power to enter convictions on the basis of alternate modes of liability is not dependent on whether the Prosecution appeals.[5] Finally the Appeals Chamber recalls that it has, on multiple occasions, rejected, Judge Pocar dissenting, the proposition that additional convictions on appeal violate an appellant’s right to a fair trial per se,[6] and notes that the Appellants do not raise new arguments that justify reconsideration of this position.[7] Accordingly, the Appeals Chamber denies the Alternate Liability Challenge.

108. Having dismissed the Appellants’ challenge to its general power to enter convictions on the basis of alternate modes of liability, the Appeals Chamber recalls that its exercise of this power is subject to the Statute’s fundamental protections of the rights of the accused.[8] The Appeals Chamber further recalls that, as set out in the Statute, its jurisdiction is focused on reviewing the findings of trial chambers for errors of law which invalidate a decision and errors of fact which occasion a miscarriage of justice.[9] The Appeals Chamber will not enter convictions under alternate modes of liability where this would substantially compromise the fair trial rights of appellants or exceed its jurisdiction as delineated in the Statute.[10]

155. The Appeals Chamber notes that the foregoing analysis does not per se preclude replacing convictions based on JCE with convictions based on alternate modes of liability. Indeed, the Appeals Chamber has on certain occasions revised trial judgements in this way. However the Appeals Chamber notes that in each of these appeals, the trial chamber’s errors had a comparatively limited impact. Thus in the Simić Appeal Judgement, the Appeals Chamber entered a conviction on the basis of aiding and abetting after finding that the indictment failed to plead participation in a JCE as a mode of liability. In both the Vasiljević Appeal Judgement and the Krstić Appeal Judgement, the Appeals Chamber entered a conviction on the basis of aiding and abetting after finding that the trial chamber erred in concluding that the relevant appellant shared the common purpose of the JCE. In none of these judgements was the trial chamber’s analysis concerning the factual basis underpinning the existence of a JCE materially reversed. By contrast, in the present case, the Appeals Chamber, Judge Agius and Judge Pocar dissenting, has found that the Trial Chamber committed fundamental errors with respect to its findings concerning artillery attacks and by extension JCE, which stood at the core of findings concerning the Appellants’ criminal responsibility.